A Routt County landowner cannot sue a former judge for his allegedly inaccurate statements in a case where the landowner was not a party, the Denver-based federal appeals court decided on Wednesday.

Anne Fitzsimmons, who lives in Germany, owns a residence and farm in Routt County that includes a single-lane easement. She alleged that a neighboring property owner threatened her if she did not allow others to access the easement. Fitzsimmons’ sister, Kathleen Fitzsimmons, who was living at the property, installed a locked gate across the lane in 2021.

Prosecutors charged Kathleen Fitzsimmons with a misdemeanor for obstructing a highway, and the jury found her guilty. She appealed her county court conviction to then-District Court Chief Judge Michael A. “Mick” O’Hara III. O’Hara upheld the conviction, and he briefly described the case as stemming from the installation of a gate “across an easement road that benefits multiple properties.” He added that Anne Fitzsimmons’ property “is one of the parcels benefitted by the easement.”

Representing herself, Fitzsimmons sued O’Hara over that characterization of her property. She alleged his brief description of the criminal case “adjudicated her property rights,” and law enforcement or neighboring property owners could use those two sentences to justify access to the easement.

“There is no evidence anywhere to substantiate the Defendant’s statements of facts,” Fitzsimmons wrote. “Plaintiff’s driveway easement does not ‘benefit multiple properties,’ and the Plaintiff’s property is not one of many properties benefitted by her driveway easement.”

In May 2025, U.S. Magistrate Judge Timothy P. O’Hara, who is not related to Chief Judge O’Hara, recommended dismissing Fitzsimmons’ lawsuit. He determined there were multiple reasons to do so, including the 11th Amendment’s general prohibition on lawsuits against states. Because Fitzsimmons had sued Chief Judge O’Hara in his official capacity, she was effectively suing the state.

Even though an exception exists for plaintiffs seeking to halt ongoing harmful conduct, “Plaintiff seeks to correct past conduct, not to address any ongoing, prospective violation of federal law by Defendant,” wrote Magistrate Judge O’Hara.

U.S. District Court Judge Gordon P. Gallagher adopted the recommendation and had unusually harsh words for Fitzsimmons.

“Sometimes it is incumbent upon a Court to not only be clear about its reasoning but to also be incredibly blunt. This is one of those times,” he wrote. “Ms. Fitsimmons, (sic) you need to stop filing these frivolous lawsuits.”

Gallagher elaborated that he handled a previous lawsuit Fitzsimmons filed against Routt County officials over the easement. At the time, Gallagher dismissed the case for multiple reasons and Fitzsimmons did not appeal. Although Chief Judge O’Hara was not a defendant, Fitzsimmons filed a second lawsuit in 2023 that named him. A different judge dismissed that case after Fitzsimmons did not follow the filing instructions.

Gallagher now emphasized that Fitzsimmons had “no actionable case in federal court regarding this situation.”

“Any attempt to bring action against Judge Michael O’Hara … is misguided, precluded by the operative immunity doctrines, and likely untimely,” Gallagher wrote. “Plaintiff is again cautioned not to attempt to relitigate this action under the guise of some other case.”

Fitzsimmons appealed to the U.S. Court of Appeals for the 10th Circuit, where she maintained that Chief Judge O’Hara effectively decided her property rights in his summary of the criminal case, which has “ongoing consequences.”

“By pronouncing that the easement ‘benefits multiple properties,’ the order invites third-party use of Plaintiff’s privately maintained driveway — functionally converting it to a public-facing access route — without process or compensation,” she wrote.

But a three-judge 10th Circuit panel agreed that the 11th Amendment prohibited Fitzsimmons from suing Chief Judge O’Hara as if she were suing the state itself.

“Granted, an exception exists when state officials are sued for prospective injunctive relief to prevent them from enforcing a law that creates an ongoing violation of federal law,” wrote Judge Robert E. Bacharach in the Aug. 5 order. “But this exception doesn’t apply. The alleged violation consists of two discrete statements about property rights (rather than an ongoing violation of federal law), and the judge isn’t charged with enforcement; his duties ended when he affirmed the sister’s conviction.”

The case is Fitzsimmons v. O’Hara.